Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Sunday, October 23, 2011

Clients and friends are invited to Ken Vercammen’s Christmas Party and Holiday Social Friday, December 2

Clients and friends are invited to Ken Vercammen’s Christmas Party and Holiday Social

Friday, December 2 · 5:00pm - 7:00pm

Bar Anticipation “Where summer never ends”

703 16th Avenue

Lake Como/ Belmar, NJ 07719

Free Food 5-8 Hot & Cold Buffet with carving station

$1.00 Drafts 6-7 [need special wrist band from Ken V]

We in the back room past the stage, called the Mahogany Room, near the outdoor bar

This is open to your friends. If attending email Ken’s Law Office so we can put your name on the list for wristbands VercammenLaw@Njlaws.com

Bring a canned food donation for the St. James Food Bank Hands of Hope. - Meet the "SuperLawyers" of NJ.

Free gifts to friends. Pick some:

Coffee Mugs

Yellow T-Shirt "My attorney fights to win"

Can Coozies

Water Bottle

Stadium Cup

Magnet clip

Fish cards

Band-Aid holders

Candy/ breath mints

More details at http://www.facebook.com/event.php?eid=175941519154087

Tuesday, October 18, 2011

Summons, Complaint and Answer in Family Cases

Summons, Complaint and Answer in Family Cases

Family cases and divorce cases in New Jersey are governed by the Court Rules set up by the NJ Supreme Court. An attorney involved in divorce and family cases needs to be aware of the current rules.

The following is a portion of the NJ Court Rules which apply to all family cases:

RULE 5:4. PROCESS, PLEADINGS, APPEARANCES

5:4-1. Process

(a) Summons Generally. Except as otherwise provided by these rules with respect to a specific family action and except as otherwise provided by paragraph (b) of this rule, the summons in all civil family actions shall be in the form prescribed by R. 4:4-2 and shall be served in accordance with R. 4:4.

(b) Summons, Summary Family Actions. In every family action required or permitted by law or rule to proceed summarily, a summons shall issue either in addition to or in lieu of an order to show cause. The summons shall comply with the requirements of R. 4:4-2 except that in lieu of requiring an answer it shall notify the defendant to appear at the time, date and place therein set forth to answer the complaint, a copy of which shall be annexed thereto. It shall also notify the defendant that unless the defendant appears at the date, time and place set forth an order may be entered by default and, if appropriate, that a warrant may issue to compel the defendant's appearance. The summons shall be served in accordance with R. 4:4.

(c) Warrant. In criminal and quasi-criminal actions, the provisions of R. 3:3 insofar as applicable shall apply. A warrant may also issue where provided by rule or otherwise appropriate to compel appearance.

5:4-2. Complaint

(a) Complaint Generally

(1) Caption. All family actions shall be captioned in the Chancery Division-Family Part.

(2) Contents. Every complaint in a family part action, in addition to the special requirements prescribed by these rules for specific family actions shall also include a statement of the essential facts constituting the basis of the relief sought, the stature or statutes, if any, relied on by the plaintiff, the street address or, if none, the post office address of each party, or a statement that such address is not known; a statement of any previous family actions between the parties; and, if not otherwise stated, the facts upon which venue is based.

In any action involving the welfare or status of a child, the complaint shall include the child's name, address, the date of birth, and a statement of where and with whom the child resides.

In any non-dissolution action involving the support of a child in which paternity was previously acknowledged by the parents, a copy of the Certificate of Parentage or other written acknowledgment of paternity shall be filed with the complaint for support.

(b) Corespondent.

(1) Identification of Corespondent. In family actions in which adultery or deviant sexual conduct is charged, the pleading so charging shall state the name of the person with whom such conduct was committed, if known, and if not known, shall state any available information tending to describe the said person, and shall also state such designation of the time, place and circumstances under which the act or series of acts were committed as will enable the party charged therewith and the court to distinguish the particular offense or offenses intended to be charged. If it is stated that the name is unknown, it must be shown at the hearing that it was not known at the time of the filing of the pleading containing the charge.

(2) Notice to Corespondent. A person named as a corespondent in any pleading seeking or resisting relief on the ground of adultery or deviant sexual conduct shall, within 30 days after filing of such a pleading, be served by the party making the charge, either personally or by registered or certified mail to the corespondent's last-known address, return receipt requested, or, if the corespondent refuses to claim or to accept delivery, by ordinary mail, with a copy of such pleading and a written notice of the pendency of the action, of the charge, and of the right to intervene in accordance with R. 4:33. If the name and address of the corespondent are discovered thereafter and before the trial, the party making the charge shall give such notice forthwith. If the name and address of the corespondent appear at the trial, and such notice has not been given, an adjournment may be ordered and such notice given. An affidavit of compliance with the requirements of this rule shall be filed.

(c) Affidavit of Verification and Non-collusion. There shall be annexed to every complaint or counterclaim for divorce or nullity of marriage an oath or affirmation by the plaintiff or counter claimant that the allegations of the complaint or counterclaim are true to the best of the party's knowledge, information and belief, and that the pleading is made in truth and good faith and without collusion for the causes set forth therein.

(d) Counterclaim. A counterclaim may state any family cause of action, and any other cause or causes of action which exist at the time of service of the counterclaim. A counterclaim not stated in an answer may be filed by leave of the court at any time prior to final judgment. Failure to counterclaim for divorce or nullity of marriage shall not bar such cause of action. In any action involving the welfare or status of a child the counterclaim shall include the child's name, address, date of birth and a statement of where and with whom the child resides.

(e) Amended or Supplemental Complaint or Counterclaim. In any action for divorce, nullity of marriage, or separate maintenance, a supplemental complaint or counterclaim may be allowed to set forth a cause of action which has arisen or become known since the filing of the original complaint, and an amended complaint or counterclaim may be allowed to change the action from separate maintenance, absolute divorce or divorce from bed and board to any other one of said actions.

(f) Affidavit or Certification of Insurance Coverage. The first pleading of each party shall have annexed thereto an affidavit listing all known insurance coverage of the parties and their minor children, including but not limited to life, health, automobile, and homeowner's insurance. The affidavit shall specify the name of the insurance company, the policy number, the named insured and, if applicable, other persons covered by the policy; a description of the coverage including the policy term, if applicable; and in the case of life insurance, an identification of the named beneficiaries. The affidavit shall also specify whether any insurance coverage was canceled or modified within the ninety days preceding its date and, if so, a description of the canceled insurance coverage. Insurance coverage identified in the affidavit shall be maintained pending further order of the court. If, however, the only relief sought is dissolution of the marriage or if a property settlement agreement addressing insurance coverage has already been reached, the parties shall annex to their pleadings, in lieu of the required insurance affidavit, an affidavit so stating. Nevertheless, if a responding party seeks financial relief, the responding party shall annex an insurance-coverage affidavit to the responsive pleading and the adverse party shall serve and file an insurance-coverage affidavit within 20 days after service of the responsive pleading. A certification in lieu of affidavit may be filed.

5:4-3. Answer, Acknowledgment, Appearance

(a) Generally. Except as otherwise provided by paragraph (b) hereof or by any other rule or statute, a defendant in a family action shall file an answer in accordance with R. 4:5-3 or a general appearance and, without filing an answer, be heard on issues of custody of children, parenting time or visitation, alimony, child support, equitable distribution, counsel fees and other issues incidental to the proceeding. A defendant may also file an acknowledgment of service in accordance with R. 4:4-6.

(b) Summary Actions. In summary family actions in which the process fixes a return day, the defendant need not file an answer, appearance or acknowledgment in order to be heard if the defendant appears on the return day.

Conclusion If involved in family court matters, immediately schedule an in-office appointment with an experienced attorney. Don't rely on a real estate attorney, or a family member who simply attended law school. When your future is on the line, hire a knowledgeable attorney.

The above information is a brief outline of Court Rules an attorney will review in applicable Family cases. If Kenneth Vercammen's office is unable to handle a case because it is outside our area, we often can refer individuals to experienced attorneys you can consult.

KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030

TRIAL AND LITIGATION EXPERIENCE In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and contested administrative law hearings.

Mr. Vercammen served as the Prosecutor for the Township of Cranbury, Middlesex County and was involved in trials on a weekly basis. He also argued all pre-trial motions and post-trial applications on behalf of the State of New Jersey.

He has also served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Berkeley Heights, Carteret, East Brunswick, Jamesburg, South Brunswick, South River and South Plainfield for conflict cases. Since 1989, he has personally handled hundreds of criminal and motor vehicle matters as a Prosecutor and now as defense counsel and has had substantial success.

Previously, Mr. Vercammen was Public Defender for the Township of Edison and Borough of Metuchen and a Designated Counsel for the Middlesex County Public Defender's Office. He represented indigent individuals facing consequences of magnitude. He was in Court trying cases and making motions in difficult criminal and DWI matters. Every case he personally handled and prepared.

His resume sets forth the numerous bar associations and activities which demonstrate his commitment to the legal profession and providing quality representation to clients.

Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court) with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Department as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

Summons in Civil Superior Court Litigation

Summons in Civil Superior Court Litigation

By Kenneth Vercammen, Esq.

Procedurally, the following events occur in most civil and personal injury cases. First, your Attorney must complete the investigation. This will involve the collection of information from the doctors, employer, and investigation. We will need your Doctors to provide us with copies of all bills, medical records and possibly a medical report. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. After the Complaint is filed and court docket number assigned, Your attorney then will prepare a Summons and have the defendants personally served with the Summons and Complaint. The defendant, usually through their insurance companys attorney, must file an "Answer" within 35 days. The following is the procedures on Service of a Summons:

Court Rule 4:4-1. Summons; Issuance

The plaintiff, plaintiffs attorney or the clerk of the court may issue the summons. If a summons is not issued within 15 days from the date of the Track Assignment Notice, the action may be dismissed in accordance with R. 4:37-2(a). Separate or additional summonses may issue against any defendants.

Rule 4:4-2. Summons: Form

Except as otherwise provided by R. 5:4-1(b) (summary proceedings in family actions), the face of the summons shall be in the form prescribed by Appendix XII-A to these Rules. It shall be in the name of the State, signed in the name of the Superior Court Clerk and directed to the defendant. It shall contain the name of the court and the plaintiff and the name and address of the plaintiffs attorney, if any, otherwise the plaintiffs address, and the time within which these rules require the defendant to serve an answer upon the plaintiff or plaintiffs attorney, and shall notify the defendant that if he or she fails to answer, judgment by default may be rendered for the relief demanded in the complaint. It shall also inform the defendant of the necessity to file an answer and proof of service thereof with the deputy clerk of the Superior Court in the county of venue, except in mortgage and tax foreclosure actions an answer shall be filed with the Clerk of the Superior Court in Trenton unless and until the action is deemed contested and the papers have been sent by the Clerk to the county of venue in which event an answer shall be filed with the deputy clerk of the Superior Court in the county of venue. If the defendant is an individual resident in this state, the summons shall advise that if he or she is unable to obtain an attorney, he or she may communicate with the Lawyer Referral Service of the county of his or her residence, or the county in which the action is pending, or, if there is none in either county, the Lawyer Referral Service of an adjacent county. The summons shall also advise defendant that if he or she cannot afford an attorney, he or she may communicate with the Legal Services Office of the county of his or her residence or the county in which the action is pending. If the defendant is an individual not resident in this State, the summons shall similarly advise him or her, directing the defendant, however, to the appropriate agency in the county in which the action is pending. The reverse side or second page of the summons shall contain a current listing, by county, of telephone numbers of the Legal Services Office and the Lawyer Referral Office serving each county, which list shall be updated regularly by the Administrative Office of the Courts and made available to legal forms publishers and to any person requesting such list.

Rule 4:4-3. By Whom Served; Copies (a) Summons and Complaint. Summonses shall be served, together with a copy of the complaint, by the sheriff, or by a person specially appointed by the court for that purpose, or by plaintiffs attorney or the attorneys agent, or by any other competent adult not having a direct interest in the litigation. If personal service cannot be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service required by R. 4:4-7, service may be made by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant or a person authorized by rule of law to accept service for the defendant or, with postal instructions to deliver to addressee only, to defendants place of business or employment. If the addressee refuses to claim or accept delivery of registered or certified mail, service may be made by ordinary mail addressed to the defendants usual place of abode. The party making service may, at the partys option, make service simultaneously by registered or certified mail and ordinary mail, and if the addressee refuses to claim or accept delivery of registered mail and if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service. Mail may be addressed to a post office box in lieu of a street address only as provided by R. 1:5-2. Return of service shall be made as provided by R. 4:4-7. (b) Writs. Unless the court otherwise orders, all writs and process to enforce a judgment or order shall be served by the sheriff. (c) Private Service; Costs. When service of process pursuant to this rule has been made by any person other than the sheriff, the allowance of taxed costs pursuant to R. 4:42-8 shall include a cost of service not exceeding the fee and mileage expenses allowable by law to the sheriff for that service.

Rule 4:4-4. Summons; Personal Service; In Personam Jurisdiction

Service of summons, writs and complaints shall be made as follows: (a) Primary Method of Obtaining In Personam Jurisdiction. The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3, as follows: (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individuals dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individuals behalf; (2) Upon a minor under the age of 14, by delivering a copy of the summons and complaint personally to a parent or the guardian of the minors person or to a competent adult member of the household with whom the minor resides; (3) Upon a mentally incapacitated person, by delivering a copy of the summons and complaint personally to the guardian of the person of the mentally incapacitated individual or to a competent adult member of the household with whom the mentally incapacitated person resides, or if the mentally incapacitated person resides in an institution, to the director or chief executive officer thereof; (4) Upon individual proprietors and real property owners, provided the action arises out of a business in which the individual is engaged within this State or out of any real property or interest in real property in this State owned by the individual, by delivering a copy of the summons and complaint to the individual if competent, or, whether or not the individual proprietor or property owner is competent, to a managing or general agent employed by the individual in such business or for the management of such real property, or if service cannot be made in that manner, then by delivering a copy of the summons and complaint to any employee or agent of the individual within this State acting in the discharge of his or her duties in connection with the business or the management of the real property; (5) Upon partnerships and unincorporated associations subject to suit under a recognized name, by serving a copy of the summons and complaint in the manner prescribed by paragraph (a)(1) of this rule on an officer or managing agent or, in the case of a partnership, a general partner; (6) Upon a corporation, by serving a copy of the summons and complaint in the manner prescribed by paragraph (a)(1) of this rule on any officer, director, trustee or managing or general agent, or any person authorized by appointment or by law to receive service of process on behalf of the corporation, or on a person at the registered office of the corporation in charge thereof, or, if service cannot be made on any of those persons, then on a person at the principal place of business of the corporation in this State in charge thereof, or if there is no place of business in this State, then on any employee of the corporation within this State acting in the discharge of his or her duties, provided, however, that a foreign corporation may be served only as herein prescribed subject to due process of law; (7) Upon the State of New Jersey, by registered, certified or ordinary mail of a copy of the summons and complaint or by personal delivery of a copy of the summons and complaint to the Attorney General or to the Attorney Generals designee named in a writing filed with the Clerk of the Superior Court. No default shall be entered for failure to appear unless personal service has been made under this paragraph. In an action under N.J.S.A. 2A:45-1 et seq. (lien or encumbrance held by the State), the notice in lieu of summons shall be in the form, manner and substance prescribed by N.J.S.A. 2A:45-2, and shall be served, together with a copy of the complaint, on the Attorney General or designee as herein provided, but if the lien or encumbrance arises by reason of a recognizance entered into in connection with any proceeding in the Superior Court or any criminal judgment rendered in such court, the notice, together with a copy of the complaint, shall be served on the county prosecutor or the prosecutors designee named in a writing filed with the Clerk of the Superior Court; (8) Upon other public bodies, by serving a copy of the summons and complaint in the manner prescribed by paragraph (a)(1) of this rule on the presiding officer or on the clerk or secretary thereof; (b) Obtaining In Personam Jurisdiction by Substituted or Constructive Service. (1) By Mail or Personal Service Outside the State. If it appears by affidavit satisfying the requirements of R. 4:4-5(c)(2) that despite diligent effort and inquiry personal service cannot be made in accordance with paragraph (a) of this rule, then, consistent with due process of law, in personam jurisdiction may be obtained over any defendant as follows:

(A) personal service in a state of the United States or the District of Columbia, in the same manner as if service were made within this State or by a public official having authority to serve civil process in the jurisdiction in which the service is made or by a person qualified to practice law in this State or in the jurisdiction in which service is made; or (B) personal service outside the territorial jurisdiction of the United States, in accordance with any governing international treaty or convention to the extent required thereby, and if none, in the same manner as if service were made within the United States, except that service shall be made by a person specially appointed by the court for that purpose; or (C) mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail to: (1) a competent individual of the age of 14 or over, addressed to the individuals dwelling house or usual place of abode; (2) a minor under the age of 14 or a mentally incapacitated person, addressed to the person or persons on whom service is authorized by paragraphs (a)(2)and (a)(3) of this rule; (3) a corporation, partnership or unincorporated association that is subject to suit under a recognized name, addressed to a registered agent for service, or to its principal place of business, or to its registered office. Mail may be addressed to a post office box in lieu of a street address only as provided by R. 1:5-2. (2) As Provided by Law. Any defendant may be served as provided by law. (3) By Court Order. If service can be made by any of the modes provided by this rule, no court order shall be necessary. If service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law. (c) Optional Mailed Service. Where personal service is required to be made pursuant to paragraph (a) of this rule, service, in lieu of personal service, may be made by registered, certified or ordinary mail, provided, however, that such service shall be effective for obtaining in personam jurisdiction only if the defendant answers the complaint or otherwise appears in response thereto, and provided further that default shall not be entered against a defendant who fails to answer or appear in response thereto. This prohibition against entry of default shall not apply to mailed service authorized by any other provision of these rules. If defendant does not answer or appear within 60 days following mailed service, service shall be made as is otherwise prescribed by this rule, and the time prescribed by R. 4:4-1 for issuance of the summons shall then begin to run anew.

Rule 4:4-5. Summons; Service on Absent Defendants; In Rem or Quasi In Rem Jurisdiction

Whenever, in actions affecting specific property, or any interest therein, or any res within the jurisdiction of the court, or in matrimonial actions over which the court has jurisdiction, wherein it shall appear by affidavit of the plaintiffs attorney or other person having knowledge of the facts, that a defendant cannot, after diligent inquiry, be served within the State, service may, consistent with due process of law, be made by any of the following 4 methods: (a) personal service outside this State as prescribed by R. 4:4-4(b)(1)(A) and (B); or (b) service by mail as prescribed by R. 4:4-4(b)(1)(C); or (c) by publication of a notice once in a newspaper published or of general circulation in the county in which the venue is laid; and also by mailing, within 7 days after publication, a copy of the notice as herein provided and the complaint to the defendant, prepaid, to the defendants residence or the place where the defendant usually receives mail, unless it shall appear by affidavit that such residence or place is unknown, and cannot be ascertained after inquiry as herein provided or unless the defendants are proceeded against as unknown owners or claimants pursuant to R. 4:26-5(c). But if defendants are proceeded against pursuant to R. 4:26-5(c), a copy of the notice shall be posted upon the lands affected by the action within 7 days after publication; (1) The notice required by this rule shall be in the form of a summons, without a caption, and shall state briefly (1) the object of the action and the name of the person to whom it is addressed and why such person is made a defendant; and (2) where the action concerns real estate, the municipality in which and the street on which the real estate is situate, and, if the property is improved, the street number of the same, if any, and if a mortgage is to be foreclosed, the parties thereto and the date thereof; (2) The inquiry required by this rule shall be made by the plaintiff, plaintiffs attorney actually entrusted with the conduct of the action, or by the agent of the attorney; it shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the defendants residence or address or the matter inquired of; the inquiry shall be undertaken in person or by letter enclosing sufficient postage for the return of an answer; and the inquirer shall state that an action has been or is about to be commenced against the person inquired for, and that the object of the inquiry is to give notice of the action in order that the person may appear and defend it. The affidavit of inquiry shall be made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice; or (d) as may be provided by court order.

Rule 4:4-6. General Appearance; Acknowledgment of Service A general appearance or an acceptance of the service of a summons, signed by the defendants attorney or signed and acknowledged by the defendant (other than an infant or mentally incapacitated person), shall have the same effect as if the defendant had been properly served.

Rule 4:4-7. Return The person serving the process shall make proof of service thereof on the original process and on the copy. Proof of service shall be promptly filed with the court within the time during which the person served must respond thereto either by the person making service or by the party on whose behalf service is made. The proof of service, which shall be in a form prescribed by the Administrative Director of the Courts, shall state the name of the person served and the place, mode and date of service, and a copy thereof shall be forthwith furnished plaintiffs attorney by the person serving process. If service is made upon a member of the household pursuant to R. 4:4-4 that persons name shall be stated in the proof or, if such name cannot be ascertained, the proof shall contain a description of the person upon whom service was made. If service is made by a person other than a sheriff or a court appointee, proof of service shall be by similar affidavit which shall include the facts of the affiants diligent inquiry regarding defendants place of abode, business or employment. If service is made by mail, the party making service shall make proof thereof by affidavit which shall also include the facts of the failure to effect personal service and the facts of the affiants diligent inquiry to determine defendants place of abode, business or employment. With the proof shall be filed the affidavit or affidavits of inquiry, if any, required by R. 4:4-4 and R. 4:4-5. Where service is made by registered or certified mail and simultaneously by regular mail, the return receipt card or the unclaimed registered or certified mail shall be filed as part of the proof. Failure to make proof of service does not affect the validity of service.

Rule 4:4-8. Amendment The person serving the process may file an additional or amended proof of service within the time provided by R. 4:4-7. The court may thereafter allow any process or proof of service thereof to be amended upon such terms as it deems appropriate unless such amendment would materially prejudice the rights of the party against whom process issued. Cases under $15,000 in Special Civil Part

RULE 6:2. PROCESS 6:2-1. Form of Summons

The form of the summons shall conform with the requirements of R. 4:4-2 and shall be in the form set forth in Appendix XI-A(1) to these Rules or, for small claims, in the form set forth in Appendix XI-A(2) or, for tenancy actions, in the form set forth in Appendix XI-B. However in landlord and tenant actions for the recovery of premises, unlawful entry and detainer actions, and actions in the Small Claims Section, in lieu of directing the defendant to file an answer, the summons shall require the defendant to appear and state a defense at a certain time and place, to be therein specified, which time shall be not less than 10 days in summary dispossess actions and not less than 5 days in small claims, nor more than 30 days from the date of service of the summons, and shall notify the defendant that upon failure to do so, judgment by default may be rendered for the relief demanded in the complaint.

6:2-2. Process; Filing and Issuance

(a) Delivery to Clerk; Issuance. The plaintiff shall, when filing the complaint, furnish the clerk in tenancy actions with the summons to be issued and in all other actions with page 2 of the summons as set forth in Appendices XI-A(1) and (2) to these Rules, and two copies with the complaint annexed for each defendant, together with two additional copies for each incompetent defendant. The clerk shall issue the summons except as otherwise provided by law and, in tenancy actions, shall attach to the summons and complaint for service on each defendant English and Spanish copies of the announcement contained in Appendix XI-S to these rules. Original process shall issue out of the court and shall require an answer or an appearance at a specific time. (b) Non-resident Defendants; Filing. If no defendant can be served with process within this State, the plaintiff may file the complaint with the clerk of the Special Civil Part of the county in which the subject transaction or occurrence took place.

6:2-3. Service of Process

(a) By Whom Served. Personal service of process within this State may be made by Special Civil Part Officers and such other persons authorized by law to serve such process as the Assignment Judge designates. Persons so designated shall receive in payment for their services the fees allowed therefor by statute. Service of all process outside this State may be made in accordance with R. 4:4-4 and R. 4:4-5. After the filing of a complaint and receipt of a docket number, service may be made by mail pursuant to either R. 4:4-4(c) by plaintiff or, pursuant to R. 6:2-3(d), by the clerk, without the payment of mileage fees. (b) Manner of Service. Service of process within this State shall be made in accordance with R. 6:2-3(d) or as otherwise provided by court order consistent with due process of law, or in accordance with R. 4:4-5, except that, in landlord and tenant actions, service of process shall be by ordinary mail and by either delivery personally pursuant to R. 4:4-4 or by affixing a copy of the summons and complaint on the door of the subject premises. Substituted service within this State shall be made pursuant to R. 6:2-3(d). Substituted or constructive service outside this State may be made pursuant to the applicable provisions in R. 4:4-4 or R. 4:4-5. (c) Notice of Service. Except in landlord and tenant actions for recovery of the premises and actions in the Small Claims Section, upon the return of service of original process, the clerk shall inform the plaintiff or attorney of the date of service. (d) Service by Mail Program. If the process is to be served in this State, or if substituted service of process is to be made within this state: (1) Initial Service. The clerk of the court shall simultaneously mail such process by both certified and ordinary mail. Attorneys shall submit to the clerk the mailing addresses of parties to be served and the appropriate number of copies of the summons and complaint. The clerk shall furnish postage, envelopes, and return receipts and shall address same. Mail service on each defendant shall be placed in separate envelopes by the clerk regardless of marital status or address. Process shall be mailed within 12 days of the filing of the complaint. The clerk thereafter shall send a postcard to plaintiff or the attorney showing the docket number, date of mailing and a statement that, unless the plaintiff is otherwise notified, default will be entered on the date shown. If service cannot be effected by mail, the clerk shall send a second card to the plaintiff or attorney stating the reasons for incomplete service and requesting instructions for reservice. (2) Reservice. Where initial service by mail is not effected, plaintiff or the attorney may request reservice by mail or by court officer personally pursuant to R. 4:4-4. If reservice by mail at the same address is requested the plaintiff or attorney shall be required to provide a postal verification or other proof satisfactory to the court that the party to be served receives mail at that address. (3) Fees. The fees for service by mail shall be as provided by N.J.S.A. 22A:2-37.1. (4) Effective Service. Consistent with due process of law, service by mail pursuant to this rule shall have the same effect as personal service, and the simultaneous mailing shall constitute effective service unless the mail is returned to the court by the postal service marked "moved, unable to forward," "addressee not known," "no such number/street," "insufficient address," "forwarding order expired," or the court has other reason to believe that service was not effected. Process served by mail may be addressed to a post office box. Service shall be effective when forwarded by the postal service to an address outside the county in which the action is instituted. Where process is addressed to the defendant at a place of business or employment, with postal instructions to deliver to addressee only, service will be deemed effective only if the signature on the return receipt appears to be that of the defendant to whom process was mailed. (5) Vacation of Defaults. If process is returned to the court by the postal service subsequent to entry of default and displays any of the notations listed in the preceding paragraph, or other reason exists to believe that service was not effected, the clerk shall vacate the default or default judgment and shall immediately notify the plaintiff or attorney of the action taken. (e) General Appearance; Acknowledgment of Service. A general appearance or an acceptance of the service of a summons, signed by the defendants attorney or signed and acknowledged by the defendant (other than a minor or mentally incapacitated person), shall have the same effect as if the defendant had been properly served.

6:2-4. Issuance and Signing of Process

All process shall be issued in the name of the State and signed by or in the name of the clerk. The clerk may designate subordinates to sign the clerks name to such process

CONCLUSION

Our office helps people in Personal Injury and Civil cases. We provide representation throughout New Jersey. Our Law Office can provide experienced attorney representation for trials. Our website kennethvercammen.com provides information on litigation matters we can be retained to represent people. If injured or involved in a possible litigation matter, immediately schedule an appointment with a litigation attorney. Dont rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and future is on the line, hire the best attorney available.

Subpoenas in a Court Case

Subpoenas in a Court Case

Kenneth Vercammen's law office represents individuals and companies in both Civil and Criminal cases. Often there is a need to require witnesses to testify at trial. To require someone to appear at trial, arbitration, or hearing, they need to be served with a subpoena. A subpoena needs to be personally served if it is to be considered valid. Sometimes we need documents or records at trial or prior to trial. A subpoena can also be used to require a company or person to produce records.

There are two types of subpoena: 1. Subpoena for Records - Also called "Subpoena Duces Tecum" 2. Subpoena to Testify - called "Subpoena Ad Testificandum"

For records-

Our letter to person or entities we want records from will state the following: Please find Subpoena Duces Tecum and the requisite fee in the amount of $6.00 served upon you pursuant to Rule 1:9-2. A personal appearance by the custodian of records is not necessary, provided that we receive the requested documents and a Certification to indicate the records are true and accurate.

We will not schedule a court reporter on the date listed on the subpoena unless the custodian of records contacts us and requests a personal appearance. Failure to comply with the subpoena may be deemed a Contempt of Court, pursuant to Rule 1:9-5. Information to include in Subpoena for Records The Subpoena for Records - Requires: caption Attorney for ______ (our client) Type in name of Plaintiff Type in name of Defendant Type in rest of caption, make sure correct court is indicated, e.g. Law Div., Municipal Court, etc. Type in docket # Action: Civil or Criminal or Traffic State of New Jersey to _____ (type in person/company or entity subpoena for records is served on) Indicate either address of court or location to deliver records, (e.g. 2053 Woodbridge Ave., Edison, NJ 08817) Date records are to be produced Records to be provided ____ (type in all documents we want) Dated - hand write date Sign Donald Phelan If this is a Municipal Court case, delete Donald Phelan and type name of Municipal Court administrator. In personal injury case, include a signed medical authorization of the plaintiff/patient We prepare a letter to company/entity we want records from. We insert client name and date of deposition or appearance. Type in other attorney name. Other attorney gets letter and copy of subpoena. If records are not received, or we do not believe entity receiving subpoena will comply, prepare a new subpoena and have person/entity served by Guaranteed Subpoena.

Subpoena To testify-

To require a witness to testify, a Subpoena Ad Testificandum [To testify] is required. The Subpoena must be personally served, together with a check for $6.00. The attorneys office will prepare the subpoena. It is served by a Process server, usually Guaranteed Subpoena, for a fee of approximately $60.00. The client is responsible for the process server fee. In Municipal Court traffic/ DWI and Municipal Court criminal cases, the witness should be present on that date set forth by the court. An affidavit or signed letter is not admissible because it is hearsay. Live testimony is required. Superior Court trials are sometimes adjourned by the court or testimony is not taken until the next day. Rather than inconvenience witnesses and require them to sit in court several days and wait, we sometimes permit a witness to be "on- call". This means that the witness agreed to provide a daytime phone number where they can be reached and agreed to appear on 24 hours notice. If the witness does not agree to be "on- call", then they must appear at the Courthouse at the date and time issued on the subpoena, sit around at the courthouse until trial itself begins and return to the Court every day until the trial is started and your testimony required. We wish to avoid inconvenience to the witnesses and often it is granted permission to be "on- call." Under the subpoena a witness is required to appear in court and testify. Failure to appear subjects a witness to numerous penalties.

Our letter to witnesses states: "We would appreciate witnesses being "on call" to testify in our behalf when the case is reached. Please advise us as to the daytime telephone number where you can be contacted. If, for any reason, you will not be available, you must call my office upon receipt of this letter." Pursuant to New Jersey Court Rules, a plaintiff or defendant is permitted to reimburse a witness for their hourly rate and lost time in Court. However, we have been advised that we cannot pay witnesses a daily rate for "on-call."

We can also provide to witnesses a copy of a map to the Court House.

Subpoena to testify- Information needed to include Prepare caption State of New Jersey to ____ (name of person) Court address date of Court Hand write date of subpoena Hand sign Donald Phelan Prepare PI Lt. G3- Trial Subpoena letter Insert date of trial and location of court.

COURT RULE 1:9. SUBPOENAS

1:9-1. For Attendance of Witnesses at a Hearing/Trial; Forms; Issuance; Notice in Lieu of Subpoena

A subpoena may be issued by the clerk of the court or by an attorney or party in the name of the clerk or as provided by R. R. 7:7-8 (subpoenas in certain cases in the municipal court). It shall state the name of the court and the title of the action and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. If the witness is to testify in a criminal action for the State or an indigent defendant, the subpoena shall so note, and shall contain an order to appear without the prepayment of any witness fee. The testimony of a party who could be subpoenaed may be compelled by a notice in lieu of subpoena served upon the partys attorney demanding that the attorney produce the client at trial. If the party is a corporation or other organization, the testimony of any person deposable on its behalf, under R. 4:14-2, may be compelled by like notice. The notice shall be served in accordance with R. 1:5-2 at least 5 days before trial. The sanctions of R. 1:2-4 shall apply to a failure to respond to a notice in lieu of a subpoena.

Subpoena for Records:

Rule 1:9-2. For Production of Documentary Evidence; Notice in Lieu of Subpoena

A subpoena or, in a civil action, a notice in lieu of subpoena as authorized by R. 1:9-1 may require production of books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena or notice if compliance would be unreasonable or oppressive and, in a civil action, may condition denial of the motion upon the advancement by the person in whose behalf the subpoena or notice is issued of the reasonable cost of producing the objects subpoenaed. The court may direct that the objects designated in the subpoena or notice be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit them or portions of them to be inspected by the parties and their attorneys and, in matrimonial actions and juvenile proceedings, by a probation officer or other person designated by the court. Except for pretrial production directed by the court pursuant to this rule, subpoenas for pretrial production shall comply with the requirements of R. 4:14-7(c).

Rule 1:9-3. Service

A subpoena may be served by any person 18 or more years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named together with tender of the fee allowed by law, except that if the person is a witness in a criminal action for the State or an indigent defendant, the fee shall be paid before leaving the court at the conclusion of the trial by the sheriff or, in the municipal court, by the clerk thereof.

Rule 1:9-4. Place of Service

A subpoena requiring the attendance of a witness at a hearing in any court may be served at any place within the State of New Jersey.

Rule 1:9-5. Failure to Appear

Failure without adequate excuse to obey a subpoena served upon any person may be deemed a contempt of the court from which the subpoena issued.

CONCLUSION

Our office represents people in Personal Injury and Criminal cases. We provide representation throughout New Jersey. Never give up! Our Law Office can provide experienced attorney representation for trials. Our website kennethvercammen.com provides information on litigation matters we can be retained to represent people. If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Dont rely on a real estate attorney, public defender or a family member who took a business law class in school. When your life and job is on the line, hire the best attorney available.

Statute of Limitations: Criminal and Traffic

Statute of Limitations: Criminal and Traffic

Disorderly person criminal offenses - 1 year. This means the Complaint must be signed within one year of the offense. It does not mean the Complaint must be served on the defendant, or that the trial must be held within 1 year.

Indictable Criminal Penalties [Felony Type] 7 year Statute of Limitations
& nbsp; Jail Fine Probation
1st Degree 10-20 years $200,000 [presumption of jail]
2nd Degree 5-10 years $150,000 [presumption of jail]
3rd Degree 3-5 years $15,000 1 year-5 years
4th Degree 0-18 months $10,000 1 year-5 years

There are many other penalties that the court must impose in criminal cases. There are dozens of other penalties a court can impose, depending on the type of matter.

If you or a family member are charged with a criminal offense, you should retain an experienced criminal attorney to argue to reduce the penalties!

MOTOR VEHICLE STATUTE OF LIMITATIONS


39:5-3 30 days Statute of Limitations except as posted below
39:3-12 Illegal obtaining DL - 1 year Statute of Limitations
39:3-34 App. for DL while SUS - 1 year Statute of Limitations
39:3-37 False App. - 1 year Statute of Limitations
39:4-129 Leaving the scene of accident - 1 year Statute of Limitations
39:10-24 Misrepresentation on title - 1 year Statute of Limitations
39:3-40 Driving while suspended DWS - 90 days Statute of
Limitations
39:4-50 DWI - 90 days Statute of Limitations
39:6B-2 No Insurance - 6 months Statute of Limitations
39: 5-31 DMV Director of Magistrate can revoke license for willful
violations even if Statute of Limitations has passed

Research by: KENNETH VERCAMMEN & ASSOCIATES, PC

State Laws Vary

State Laws Vary

Beyond the ability to make gifts on your behalf, many aspects of a Power of Attorney are governed by state law. Generally, the law of the state in which you reside at the time you sign a Power of Attorney will govern the powers and actions of the agent(s) under that document

Starting a New Limited Liability Company (LLC)

Starting a New Limited Liability Company (LLC)

By Kenneth A. Vercammen, Attorney at Law

Complete Formation Service - Our complete formation service includes the preparation and filing of the certificate of formation on the expedited basis with the New Jersey Division of Taxation. We will also complete the operating agreement and issue of the member certificates. The completed company outfit will be available for pick up within 14 business days. Legal fees and filing costs are approx $1,200. Please fill out the following information and forward to our office.

1. Proposed Name of Limited Liability Company LLC: _________________

Alternate names of Limited Liability Company LLC: ________________

2. Registered agent: __________________________________________

3. Address of registered agent __________________________________ Name founder/director 1- ____________________________________

Address: _________________________________________________

Name founder/director 2- ____________________________________

Address: _________________________________________________

Name founder/director 3- ____________________________________

Address: ________________________________________________

Name and address of location where Company is located/ first meeting to be held ________________________________________________

Address of principal place of business: __________________________

Benefits of a Limited Liability Company LLC:

Setting up a Limited Liability Company LLC will provide the members with certain protections if they keep up their Limited Liability Company LLC status. In a Limited Liability Company LLC, the liability of the owners is generally limited to the amount they pay for their membership certificates. The names of the members are also private from the public. A Limited Liability Company LLC is a legal entity, and its continuity is unaffected by death or the transfer of shares of stock by any or all owners.

There are many advantages and restrictions on the Limited Liability Company LLC. Your accountant can explain the taxes and employee benefits analysis, as compared to a corporation or sole proprietorship.

HOW YOUR ATTORNEY CAN HELP YOU AND DOCUMENTS YOU CAN HIRE AN ATTORNEY TO PREPARE OR REVIEW FOR YOU:

l. Prepare Limited Liability Company LLC Resolutions each time major decisions must be made 2. Prepare/Review buy-sell agreements 3. Obtain SS-4(Federal) application for Employer Identification Number 4. Provide specific legal advice 5. Prepare and File Certificate of Change of Registered Agent 6. Revise Membership agreement 7. Prepare Agreement of Sale 8. Prepare Promissory Note

There are many federal and state forms and other documents to be obtained by you or your accountant:

1. W-4 (Federal) Employees Withholding Allowance Certificate 2. I-9 (Federal) Employment Eligibility Verification (Required by the U.S. Department of Justice, Immigration and Naturalization Services). The I-9 verifies an individuals eligibility for employment. 3. 2553 (Federal) Election by a Small Business Corporation 4. UC-l (NJ) Status Report of Employing Unit 5. CIS-l (NJ) Application for Registration

Each year the affairs of small businesses become more and more complex as government regulations and tax law changes increasingly affect their operations. Probably the best way for a business, whether it is a proprietorship, partnership, Limited Liability Company LLC or corporation, to comply with all laws, regulations or rulings is to meet with your attorney near the end of each fiscal year. Certain questions must be answered, including but not limited to:

1. Is the minute book up to date? 2. Are the minutes signed? 3. Do the minutes reflect the following? a. Annual shareholders meeting? b. Annual directors meeting? c. Special meetings? d. Retirement plan contributions? e. Bonuses? 4. Are stock certificate books properly up to date? 5. Are by-laws properly up to date? 6. Are proper records of expense reimbursements being kept?

Accountant Duties

You should have your accountant advise your attorney in writing to confirm the following questions are taken care of:

1. Have taxes been estimated? 2. Have deposits on federal and state taxes been paid? 3. Are there any earnings accumulation problems? 4. Have state and federal tax returns been prepared? 5. Have all tax returns been filed on time? 6. Are proper depreciation guidelines being followed?

CALL YOUR ATTORNEY WITH ANY LEGAL ISSUES

As an owner or officer of a business, you must see that all necessary steps be taken in order to protect your business and to finish necessary transactions before the end of the business fiscal year. You should discuss these duties with your attorney, plus discuss the advisability of contemplated transactions.

Starting a New Business

Starting a New Business

There are four main types of Business Organization:

1. Sole Proprietorship 2. Partnership * A. General Partnership * B. Limited Partnership 3. Corporation 4. Limited Liability Companies

ADVANTAGES AND DISADVANTAGES OF BUSINESS ORGANIZATIONS

Sole Proprietorship

Advantages

1. Low start-up costs 2. Greatest freedom from regulations 3. Owner in direct control and asset ownership 4. Single level of taxation and both federal and state levels of taxation 5. Profits belong to owner 6. Reduced levels of annual reporting

Disadvantages

1. Unlimited liability 2. Lack of continuity 3. More difficult to raise capital 4. Limits in tax deductions of medical and group life insurance

Partnership

Advantages

1. Ease in formation 2. Low start-up costs 3. Additional sources of capital 4. Broader management base

Disadvantages

1. Unlimited personal liability 2. Lack of continuity 3. Divided authority 4. Hard to find suitable partners

Corporation

Advantages

1. Limited liability 2. Ownership is transferable 3. Continuous existence 4. Legal entity

Disadvantages

1. Closely regulated 2. Most expensive to organize 3. Difficult to liquidate investment

Corporation

Advantages

1. Tax deferral @ l5% for first $50,000 of income 2. Medical Insurance is deductible 3. Group term life insurance is deductible

Disadvantages

1. Maximum tax rate is 34% 2. Double taxation 3. Favorable liquidation tax treatment is no longer available resulting in double taxation.

S Corporation

Advantages

1. Single level of federal taxation 2. Single level of taxation upon sale or liquidation of business

Disadvantages

1. Medical and group term life insurance is not deductible

Limited Liability Companies

An LLC is a new, non-corporate entity combining the operational flexibility and tax status of partnerships with the limited liability protection traditionally associated with corporations. Profit and non-profit activities may be pursued through LLCs.

Generally, in New Jersey as well as other states that have adopted LLC legislation, an LLC expressly constitutes a separate and distinct legal person. The basic components which are derived from both corporate and partnership laws, are as follows:

* Articles of Organization * Management * Operating Agreement * Limited Liability * Membership * Limited Life

DOCUMENTS YOU MAY NEED

1. Prepare/Review lease agreements or purchase agreements 2. Prepare/Review franchise agreements 3. Prepare/Review buy-sell agreements 4. Obtain licenses, zoning variances 5. Provide specific legal advice 6. Prepare/Review and File Certificate of Incorporation and establish Registered Agent 7. Prepare/Review By-Laws 8. Prepare/Review initial meeting of shareholders documents 9. Prepare/Review and File Trade Name Certificate 10. Prepare/Review Partnership Agreement 11. Prepare/Review Agreement of Sale 12. Prepare/Review Promissory Note 13. Prepare/Review and File Annual Report 14. Suggestions on workers compensation coverage

IS THE CORPORATE STATUS UP TO DATE? IS THE CORPORATE STATUS UP TO DATE?

1. Is the minute book up to date? 2. Are the minutes signed? 3. Do the minutes reflect the following? * a. Annual shareholders meeting? * b. Annual directors meeting? * c. Special meetings? * d. Retirement plan contributions? * e. Bonuses? 4. Are stock certificate books properly up to date? 5. Are by-laws properly up to date? 6. Are proper records of expense reimbursements being kept?

You should have your accountant contact your attorney to be certain these and the following questions are taken care of:

1. Has corporate tax been estimated? 2. Have deposits on federal and state taxes been paid? 3. Are there any earnings accumulation problems? 4. Have state and federal tax returns been prepared? 5. Have all tax returns been filed on time? 6. Should a subchapter S election be made or recorded? 7. Are proper depreciation guidelines being followed?

Starting a Business

Starting a Business

There are four main types of Business Organization:

1. Sole Proprietorship 2. Partnership * A. General Partnership * B. Limited Partnership 3. Corporation 4. Limited Liability Companies

ADVANTAGES AND DISADVANTAGES OF BUSINESS ORGANIZATIONS

Sole Proprietorship

Advantages

1. Low start-up costs 2. Greatest freedom from regulations 3. Owner in direct control and asset ownership 4. Single level of taxation and both federal and state levels of taxation 5. Profits belong to owner 6. Reduced levels of annual reporting

Disadvantages

1. Unlimited liability 2. Lack of continuity 3. More difficult to raise capital 4. Limits in tax deductions of medical and group life insurance

Partnership

Advantages

1. Ease in formation 2. Low start-up costs 3. Additional sources of capital 4. Broader management base

Disadvantages

1. Unlimited personal liability 2. Lack of continuity 3. Divided authority 4. Hard to find suitable partners

Corporation

Advantages

1. Limited liability 2. Ownership is transferable 3. Continuous existence 4. Legal entity

Disadvantages

1. Closely regulated 2. Most expensive to organize 3. Difficult to liquidate investment

Corporation

Advantages

1. Tax deferral @ l5% for first $50,000 of income 2. Medical Insurance is deductible 3. Group term life insurance is deductible

Disadvantages

1. Maximum tax rate is 34% 2. Double taxation 3. Favorable liquidation tax treatment is no longer available resulting in double taxation.

S Corporation

Advantages

1. Single level of federal taxation 2. Single level of taxation upon sale or liquidation of business

Disadvantages

1. Medical and group term life insurance is not deductible

Limited Liability Companies

An LLC is a new, non-corporate entity combining the operational flexibility and tax status of partnerships with the limited liability protection traditionally associated with corporations. Profit and non-profit activities may be pursued through LLCs.

Generally, in New Jersey as well as other states that have adopted LLC legislation, an LLC expressly constitutes a separate and distinct legal person. The basic components which are derived from both corporate and partnership laws, are as follows:

* Articles of Organization * Management * Operating Agreement * Limited Liability * Membership * Limited Life

DOCUMENTS YOU MAY NEED

1. Prepare/Review lease agreements or purchase agreements 2. Prepare/Review franchise agreements 3. Prepare/Review buy-sell agreements 4. Obtain licenses, zoning variances 5. Provide specific legal advice 6. Prepare/Review and File Certificate of Incorporation and establish Registered Agent 7. Prepare/Review By-Laws 8. Prepare/Review initial meeting of shareholders documents 9. Prepare/Review and File Trade Name Certificate 10. Prepare/Review Partnership Agreement 11. Prepare/Review Agreement of Sale 12. Prepare/Review Promissory Note 13. Prepare/Review and File Annual Report 14. Suggestions on workers compensation coverage

IS THE CORPORATE STATUS UP TO DATE? IS THE CORPORATE STATUS UP TO DATE?

1. Is the minute book up to date? 2. Are the minutes signed? 3. Do the minutes reflect the following? * a. Annual shareholders meeting? * b. Annual directors meeting? * c. Special meetings? * d. Retirement plan contributions? * e. Bonuses? 4. Are stock certificate books properly up to date? 5. Are by-laws properly up to date? 6. Are proper records of expense reimbursements being kept?

You should have your accountant contact your attorney to be certain these and the following questions are taken care of:

1. Has corporate tax been estimated? 2. Have deposits on federal and state taxes been paid? 3. Are there any earnings accumulation problems? 4. Have state and federal tax returns been prepared? 5. Have all tax returns been filed on time? 6. Should a subchapter S election be made or recorded? 7. Are proper depreciation guidelines being followed?

Standardized Field Sobriety Testing

Standardized Field Sobriety Testing

The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help law enforcement officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through the International Association of Chiefs of Police (IACP). The three tests of the SFST are:

0. Horizontal Gaze Nystagmus (HGN),

0. Walk-and-Turn (WAT),

0. and One-Leg Stand (OLS).

These tests are administered systematically and are evaluated according to measured responses of the suspect. HGN Testing

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.08 or greater. NHTSA research found that this test allows proper classification of approximately 88 percent of suspects (Stuster and Burns, 1998). HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants. Walk and Turn

The Walk-and-Turn test and One-Leg Stand test are "divided attention" tests that are easily performed by most unimpaired people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.

In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for eight indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps. NHTSA research indicates that 79 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.08 or greater (Stuster and Burns, 1998). One Leg Stand

In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 83 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater (Stuster and Burns, 1998).

Combined Measures

When the component tests of the SFST battery are combined, officers are accurate in 91 percent of cases, overall, and in 94 percent of cases if explanations for some of the false positives are accepted (Stuster and Burns, 1998).

The original NHTSA research found different accuracies for the SFST Battery than reported in the more recent study. Tharp, Burns, and Moskowitz (1981) reported accuracies of 77 percent for the HGN, 68 percent for the Walk and Turn, and 65 percent for the One Leg Stand components; 81 percent of officers' arrest decisions at 0.10 BAC were correct when all three measures were combined. In contrast, Stuster and Burns (1998) found greater accuracies in making arrest decisions on the basis of SFST results in their study at 0.08 percent BAC, as described previously and summarized in the following table.

Source/ More details at http://www.nhtsa.dot.gov/people/injury/alcohol/SFST/appendix_a.htm

Sports Accidents

Sports Accidents

If youve been in an accident and are considering making a claim, call a lawyer promptly, as there are time limits for making claims. These time limits (called statutes of limitations) have harsh results if not followed. Recently, a woman who was hurt in a car accident made a claim one day after the statue of limitations for injury actions passed. Despite this minor violation, a court dismissed her claim, and she could not recover for her injuries and losses. In addition, a Notice of Claim must be served on a Public Entity within 90 days. We will not handle a case unless there is bona fide negligence. You must have a serious permanent injury.

What happens in a Personal Injury Sports Accident:

AT THE ACCIDENT SCENE

1. Stop . . . do not leave the scene of the accident. CALL THE AMBULANCE, tell them where the accident occurred and (ask for medical help if needed).

2. Notify the property manager or owner, if possible. Insist they observe where you fell. For example, if you fall on debris at an ice skating, notify the manager.

3. Get names and addresses of all witnesses Witnesses will be a tremendous help to you in any subsequent court action if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses names to anyone but the police, your attorney or your insurance company.

4. While waiting for ambulance, write down- Accident Information Date __ Time __ Location __ Weather __ Road conditions __ Damage __

5. Summary of accident

6. Diagram of accident location

7. Call an ambulance. If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. Youll want it on record that you sought treatment right away, not in a week or so.

8. Write down name of Police Officers, Department and Badge Number, Ambulance crew, etc.

9. Do not assign or accept blame for the accident.

- The scene of the accident is not the place to determine fault. Discuss the accident only with the ambulance and medical personnel, your attorney and with representatives of your insurance company. Give the other party only your name and address.

- Be cooperative with the police.

10. Have immediate photos taken of accident site.

11. Call a personal injury attorney immediately, not a real estate attorney.

Call Kenneth A. Vercammen- Trial Attorney (Attorney At Law) - (732) 572-0500

When you need help the most, we will be ready to help you.

12. Never give a signed statement to the claims adjuster representing the property owners insurance company. The same goes for a phone recording. They may be used against you in court to deny your claim. Speak with your personal injury attorney first.

IF YOU HAVE BEEN INJURED DUE TO NEGLIGENCE IN A SPORTS INJURY

It is important that you --

1. DO NOT discuss your case with anyone except your doctors and attorney.

2. DO NOT make any statements or give out any information.

3. DO NOT sign any statements, reports, forms or papers of any kinds.

4. DO NOT appear at police or other hearings without first consulting with your attorney.

INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any hearings.

5. Refer to your attorney anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case.

6. Direct your doctor and other treatment providers not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEYS WRITTEN PERMISSION.

7. You may have insurance coverages such as Blue Cross, Blue Shield or Major Medical which require prompt attention. However, be sure to have your treatment providers send bills immediately to all of your insurance companies.

8. Notify your attorney promptly of any new developments. Small things may be important. Keep your attorney informed.

9. Maintain accurate records of all information and data pertaining to your case.

10. If you or any witnesses should move, be sure to notify your attorney of the new address.

Financial Recovery if injured while falling down

1. Kenneth Vercammen Helps Injured persons A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company. As the attorney of record, I will be bringing this action for the injured person. Therefore, I request that all clients do as much as possible to cooperate and help in every way. The purpose of this article is to describe the procedure that we may follow and give you sufficient instructions to enable you to assist us in this undertaking. Needless to say, helping us is just another way of helping yourself.

2. Clients should provide my office with the following

  • 1. Any bills
  • 2. All Hospital or doctor records in your possession
  • 3. Photos of scars, cuts, bruises
  • 4. Photos of damage to your clothes and property
  • 5. Photos of accident site
  • 6. Major Med Card
  • 7. Paystub if lost time from work

3. Attorney- Client Confidential Relationship First, I want to thank our clients for giving me the opportunity to assist them in their case. I am a legal professional and I have great pride and confidence in the legal services that I perform for clients during our relationship as attorney-client. If you have concerns about your case, please call my office. (732) 572-0500 We feel that this case is extremely important not only to you, but to this office as well. This is not simply a matter of obtaining just compensation for you, although that is very important; we take professional pride in guiding our clients carefully through difficult times to a satisfactory conclusion of their cases.

4. Submission of Bills to Major Medical Second

5. Diary We want you to keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort you put into your employment, what activities you engage in after work, etc. In other words, we need you to describe the changes in your working life, your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook. Remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family, friends, and co-workers. Keep a diary of all matters concerning this accident-no matter how trivial you think it may be. You should include notes on the treatments you receive, therapy, casts, appliances, hospitalization, change of doctors, change of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you.

6. Record expenses You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times. From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date. Your attorney will keep track of your legal expenses, which may include costs of filing, service of complaint, investigation, reports, depositions, witness fees, hospital/ medical records, etc.

7. Investigation and Filing of Complaint Procedurally, the following events occur in most personal injury cases. First, your attorney must complete the investigation. This will involve the collection of information from your physician, your employer, and our investigator. We will need your doctors to provide us with copies of all bills, medical records and possibly a medical report. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a summons and have the defendants personally served with the Summons and Complaint. The defendant, through their insurance company, must file an Answer within 35 days.

8. Interrogatory Questions and Discovery The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. The Superior Court has set up certain Form A Interrogatory Questions which are contained in the Rules of Court. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. The deposition is just as important as the trial itself. In the event you are deposed during the course of this action, you will receive detailed instructions as to the procedure and will be required to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date. Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.

9. Doctor/ Treatment It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured person concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim. Tell your doctors all of your complaints. The doctors records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken and the bills. Also save all bottles or containers of medicine.

10. Bills Retain all bills which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it.

11. Evidence Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession.

12. Photographs Take photographs of all motor vehicles, accident site, etc., that may be connected--directly or indirectly--with your accident. Again, be sure to let the office know that you have such photographs.

.i.13. Keep your attorney advised Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life.

i.14. Lost wages Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc.

.i.15. New information In the event that any new information concerning the evidence in this case comes to your attention, report this to the attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable.

16. Do not discuss the case The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.

Obviously, we cannot stress too strongly that you DO NOT discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.

17. Questioning If any person approaches you with respect to this accident without your attorneys permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorneys office.

18. Investigation by Defendant Insurance Company Permit us to reiterate at this time that the oppositions insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions.

We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule.

If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you.

Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimants past medical records.

19. Surveillance by Insurance Companies Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.

However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctors advice. If you have to do things which cause you pain, this can usually be explained to the full satisfaction of any court or jury.

There are cases where the insurance agent has attempted to discredit a personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiffs claim in court.

20. The value of a case depends on the Permanent Injury, medical treatment and doctors reports Undoubtedly, you have questions as to how much your case is worth. We are going to be frank: The fact of the matter is there can be no answer to this question until we have completed the investigation in your case. Once we complete our investigation, of course, we can make a determination as to the amount of the defendants liability, if any, and even at that we will only be at a starting point. After that, we must obtain all necessary information concerning your lost wages, your disability, your partial disability, your life changes, and your prognosis. You may rest assured of one thing, however, and that is the fact that your case will not be settled below its true value, that is the fair compensation for the injuries you have received. You may also rest assured that no settlement agreement will be entered into without your consent.

Conclusion We appreciate that this is a great deal of information to absorb. We also appreciate that our requests for clients assistance have been numerous. However, we are certain that our clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for your injury. Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time.

Speedy Trial Violated in DWI and Traffic

Speedy Trial Violated in DWI and Traffic

In a DWI case, State v. Farrell NJ Super (App. Div 1999) a DWI conviction was reversed and case dismissed based on speedy trial violation.
The court held: "Excessive delay in completing a prosecution can potentially violate a defendant's constitutional right to a speedy trial as a matter of fundamental fairness, apart from whether double jeopardy standards have been contravened. Id. at 354-55.

In cases arising from municipal court DWI prosecutions, just as with criminal prosecutions, consideration whether the right to a speedy trial has been violated is guided by the four factors announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101, 117-18 (1972). Gallegan, supra, [117 NJ 345, 1989] 117 N.J. at 355; State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990)." Farrell, supra.

Specifically, the court must engage in a multi-element balancing process of the four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his right to speedy trial, and any prejudice to the defendant occasioned by the delay.Gallegan, supra, 117 N.J. at 355; State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996), certif. denied, 157 N.J. 543 (1997). State v Farrell
NJ
supra.

Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation.Gallegan, supra, 117 N.J. at 355; Marcus, supra, 294 N.J. Super. at 293. Further, because the evaluative process involves a balancing of considerations, if the other factors weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant. See State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976).

In a related vein, the defendant's demonstration of prejudice is not strictly limited to a "lessened ability to defend on the merits." Ibid. Rather, prejudice can be found from a variety of factors including "employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." Ibid. (citing Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed.2d 183 (1973)), cited by State v Farrell, supra.

The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See State v. Fox, 249 N.J. Super. 521, 523 & n.1 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124 (Law Div. 1987).

In Perkins, supra, defendant was charged with DWI on October 10, 1986, following a car accident in which only he was injured. 219 N.J. Super. at 122. Defendant first appeared in municipal court on December 4, 1986, but the State was not prepared to proceed and sought a continuance. Id. at 123. The trial was reset for January 8, 1987, and the municipal court judge stated that defendant would be entitled to a dismissal if the State was not ready to prosecute. Ibid. Nevertheless, even though the State was not prepared on January 8 due to a change of prosecutor and subpoena problems, the municipal court denied defendant's motion to dismiss. Perkins at 123-24.

On appeal, in Perkins the Law Division dismissed the complaint against defendant. Id. at 124. After first noting the Supreme Court's sixty-day directive, the judge stressed that the municipal court had promised that the case would be tried or dismissed on that date. Id. at 124-25. He stated that "[a] court's promise is sacrosanct" and must be honored. Id. at 125. Accordingly, the municipal court's denial of defendant's motion to dismiss was evaluated as "an arbitrary, and therefore improper" exercise of discretion. Ibid. The municipal court's promises aside, the Law Division judge added, a substitution of prosecutor and failure to subpoena witnesses and otherwise prepare the State's case could not justify the second adjournment. Ibid.

As a general rule in applying the evaluative features of the four-part test of Barker in fundamental fairness terms, delays of scheduling and other failures of the process for which the trial court itself was responsible are attributable to the State and not to the defendant. 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117

Moreover, prejudice to a defendant resulting from delay is no longer confined to inability or lessened ability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like. Moore v. Arizona, supra. [Smith, supra, 131 N.J. Super. at 368 n. 2.]

"A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.
Moreover ...society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest."
State v Perkins, supra at 127, quoting Barker v Wingo, supra, 497 U.S. at 527.

The Municipal Court Should Dismiss Complaints Against Defendant When the State is Not Ready to Proceed or Discovery Not Provided.

Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal prosecutor's role in connection with discovery, and added:

There is further reason for requiring the prosecutor to be responsible. In our court system, the prosecutor, contrary to an ordinary advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J. 450, 549-550 [117 A.2d 592] (1955).

He is not to prosecute, for example, when the evidence does not support the State's charges.
Consequently, the prosecutor has an obligation to defendants as well as the State and the public.
Our discovery rules implicate that obligation, an obligation which can be discharged by no one else.
[216 N.J. Super. at 555, 524 A.2d 474]

As set forth in State v Prickett; 240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who selects the State's witnesses, requests postponements for the State, complies with discovery rules, requests dismissal if the State cannot make out a case, and does all else necessary to prepare and present the State's cases in the municipal court.

See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on the Improvement of Municipal Courts (1985)".
R. 1:2-4(a) provides for payment of costs to an adverse party as a condition of adjournment even where the State is the offending party in a criminal action.

State v. Audette, 201 N.J. Super. 410, 493 A. 2d 540 (App. Div. 1985).

In Prickett, supra the Appellate Division agreed with the Law Division judge that the case should be remanded to the municipal court for determination and imposition of appropriate costs and for trial within 45 days of the date of this opinion.

A party has failed to comply with this Rule [a discovery request] or with an order issued pursuant to this Rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate. State v Prickett 240 NJ Super 139, 145 App. Div (1990)

We have the problem of a part-time municipal prosecutor responsible for preparing cases for trial who abandons a prosecutorial function to the municipal court clerk who assumes it.

R. 1:9-1 indicates that the court clerk may issue a subpoena, but makes no provision for service by the court clerk nor does it give the clerk the authority to excuse any witness absent instructions from the municipal court judge. The municipal court clerk should not become involved in the preparation of the State's case.
See N.J. Municipal Court Clerks' Manual, §2.3, pp. 69-70 (A.O.C. 1985) which states:

"The municipal prosecutor has the responsibility for determining what witnesses he wants and of preparing his own subpoenas. However, if the municipal prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett 240 NJ Super at 145. However, the court should not ever act as the prosecutor's assistant. The court must be neutral.

If the state is not prepared, the charges should be dismissed or state sanctioned. Because the State is the municipal prosecutor's client, a failure to discharge the obligations of his office is a violation of a prosecutor's professional responsibility to represent the client diligently. When a prosecutor has available relevant evidence bearing on a prosecution, and the prosecutor's failure to present that evidence in the course of trial results in acquittal, that prosecutor has not diligently discharged his or her duty to prepare and present the State's case. Furthermore, when the failure to prepare for trial and present relevant evidence prejudices the State's case, the prosecutor's deviation from that duty may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468 (1992)

Furthermore, "delay occasioned by the courts must be charged against the State, not the defendant." State v Perkins, 219 NJ Super. 121, 127 (Law Div 1987). "The court is one part of our tripartite system of government. Its failures cannot be permitted to injure a defendant who had nothing to do with them and no control over them." Id. at 127.